IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Charles McCoy, :

 Plaintiff, : Case No. 2:12-cv-655

 v. : 

David B. Stokes, : JUDGE EDMUND A. SARGUS, JR.

 Defendant. : Magistrate Judge Kemp

 

 REPORT AND RECOMMENDATION

Plaintiff, Charles McCoy, a state prisoner proceeding in

forma pauperis, has filed a complaint seeking relief against

David B. Stokes, who served as his private attorney in a previous

criminal matter. The Court has previously granted Mr. McCoy’s

motion to proceed in forma pauperis and assessed the appropriate

filing fee. The issue now before the Court is whether the

complaint survives an initial screening pursuant to 28 U.S.C.

§1915(e)(2) and 28 U.S.C. §1915A. For the following reasons, it

will be recommended that the case be dismissed.

I. Factual Background

The facts that Mr. McCoy alleged in his complaint may be

summarized as follows. Mr. McCoy was a defendant in a state

criminal case, State v. McCoy, Case No. 04-CR-380, filed in

Licking County, Ohio. He was convicted and sentenced to thirty

years in prison. He was represented in that action by David B.

Stokes, a private attorney from Newark, Ohio.

In his complaint, Mr. McCoy alleged that Mr. Stokes entered

into “an agreement” with the Assistant Prosecutor “not to enter

any evidence (esp. physical).” Mr. McCoy contends that entering

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into this agreement was negligent and improper and that Mr.

Stokes’s negligence/malice adversely affected his appeals

process. As relief, he seeks damages in the amount of

$30,000,000.00.

II. Legal Standard

The ability to proceed in forma pauperis was established by

Congress through 28 U.S.C. §1915 in order to provide greater

means of access to the judicial system for the indigent. Denton

v. Hernandez, 504 U.S. 25, 31 (1992). The statute allows, with

proper showing of financial need, a petitioner to proceed in an

action “without prepayment of fees or security thereof.” 28

U.S.C. § 1915(a)(1). 

However, 28 U.S.C. §1915(e)(2) requires the Court “to

dismiss the case at any time if the court determines that ...(B)

the action or appeal (i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted; or (iii) seeks

monetary relief against a defendant who is immune from such

relief.” A suit is frivolous if it lacks any arguable foundation

in either fact or law. Neitzke v. Williams, 490 U.S. 319, 325

(1989). A complaint fails to state a claim upon which relief can

be granted, if, after accepting as true all well-pleaded

allegations of the complaint, the allegations do not “raise a

right to relief above the speculative level.” Bell Atl. Corp v.

Twombly, 550 U.S. 544, 555 (2007). 

The Court is mindful that pro se complaints are to be

construed liberally in favor of the pro se party. Haines v.

Kerner, 404 U.S. 519 (1972); see also Jourdan v. Jabe, 951 F.2d

108, 110 (6th Cir. 1991). It is with these standards in mind

that the Court conducts its initial screening of the complaint

submitted by Mr. McCoy.

III. Discussion

A. § 1983 Claim

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Mr. McCoy’s complaint could be construed to allege a

violation of his Sixth Amendment right to the effective

assistance of counsel. Individuals may file private rights of

action for certain violations of their constitutional rights

pursuant to 42 U.S.C. §1983. However, §1983 relief is not

available in this case.

In order to obtain relief under §1983, a plaintiff must show

that he or she has been deprived of a right "secured by the

Constitution and the laws" of the United States. Flagg Bros. v.

Brooks, 436 U.S. 149, 155 (1978). The Court will assume, for

purposes of determining if the complaint states a viable claim

for relief, that Mr. Stokes’s representation of Mr. McCoy was, in

fact, negligent/malicious in nature, and that such representation

would have resulted in a violation of Mr. McCoy’s constitutional

right to effective assistance of counsel. 

However, under 42 U.S.C. §1983, a plaintiff must also show

that the defendant was acting "under color of any statute" of a

State. Id. Usually, but not always, that means that the

defendant must have been employed by a State or a political

subdivision of a State such as a county, city, township, or some

other governmental body at the time the defendant acted, and the

defendant’s actions must also have had some relationship to his

or her position as a governmental employee. 

Even if someone is not directly employed by a governmental

body, he or she may qualify as a “state actor” under §1983. In

order for that to happen, however, the defendant’s actions must 

be “fairly attributable to the State” in some way. Lugar v.

Edmondson Oil Co., 457 U.S. 2744, 2753 (1981). Under Lugar’s

two-part “fair attribution” test, the constitutional deprivation

“must be caused by the exercise of some right or privilege

created by the State. . . and the party charged with the

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deprivation must be a person who may fairly be said to be a state

actor.” Id. 

Here, Mr. McCoy does not allege that Mr. Stokes was employed

by the State of Ohio, Licking County, the City of Newark, or any

other governmental body. It appears that he simply represented

Mr. McCoy as a private attorney. If that is so, the law is clear

that Mr. Stokes did not exercise any rights or privileges created

by the State of Ohio. Mr. Stokes, as a private attorney, cannot

fairly be said to be a state actor; the Court of Appeals for this

Circuit and this Court have held in the past that private

attorneys are not “state actors” when they represent defendants

in criminal matters. See, e.g., Cudejko v. Goldstein, 22 Fed.

Appx. 484, 485 (6th Cir. October 26, 2001), citing Polk Co. v.

Dodson, 454 U.S. 312 (1981); see also Freshwater v. Mt. Vernon

City School District, 2010 WL 1434314, *2 (S.D. Ohio April 8,

2010). The Polk County case, decided by the United States

Supreme Court, held that even attorneys (such as public

defenders) who are paid from state funds rather than by their

indigent clients still act on behalf of their private clients and

not the State, so they are not “state actors” and cannot be held

liable under §1983. Based on these decisions, Mr. McCoy cannot

properly assert a claim against Mr. Stokes, a private attorney

and not a “state actor,” under §1983 even if there were some

basis for believing that Mr. Stokes deprived Mr. McCoy of some

constitutional right.

B. Legal Malpractice Claim

If, on the other hand, Mr. McCoy’s claim is simply one for

malpractice, it must be dismissed for lack of jurisdiction,

because it does not present a federal question under 28 U.S.C.

§1331, which states that “the district courts shall have original

jurisdiction of all civil actions arising under the Constitution,

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laws, or treatises of the United States.” Additionally, Mr.

McCoy’s claim does not satisfy the diversity of citizenship

requirement of 28 U.S.C. §1332. Mr. McCoy and Mr. Stokes are

both citizens of Ohio, and the Court may not hear cases based on

state law where both the plaintiff and defendant are citizens of

the same state. 

IV. Recommended Disposition

For the reasons stated above, it is recommended that the

complaint be dismissed for failure to state a claim upon which

relief may be granted. If this recommendation is adopted, a copy

of the complaint, the Report and Recommendation, and the

dismissal order should be mailed to the defendant. 

V. Procedure on Objections

If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

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Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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